Waitangi Tribunal says no to indigenous ownership

One of the findings of the Waitangi Tribunal in the WAI 262 report is that Maori tribes do not have ownership rights in “taonga species” or in traditional knowledge relating to those species.

The Tribunal observed that Maori are obliged to act as kaitiaki (cultural guardians) towards “taonga species” of flora and fauna within their tribal areas.  “Taonga species” in turn are flora and fauna that are significant to the culture or identity of Maori tribes.

The Treaty of Waitangi entitles Maori to a reasonable degree of control over traditional knowledge relating to taonga species and how that knowledge is used.  But it does not entitle kaitiaki to ownership of taonga species.  The Treaty’s English text refers to exclusive ownership.  The Maori text refers to tino rangatiratanga (authority and control).  The Tribunal preferred the Maori text.

The Tribunal observed that Maori created taonga works and matauranga Maori (traditional knowledge).  But Maori did not create taonga species.  In fact the taonga species created Maori culture.  Cultural association with taonga species does not automatically mean exclusive proprietorial rights.

Kaitiaki interests must be fairly and transparently balanced alongside other interests.  These interests include:

• the interests of those who conduct research and/or hold IP rights;
• the public interest in research and development
• the interests of the species themselves

This lack of ownership means that kaitiaki are not entitled to a veto over uses of intellectual property in taonga species in all cases.